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HomeMy WebLinkAboutResolution - 2015-R0042 - License Agreement With YWCA - 01/22/2015No. 2015-R0042 Qmll`m try 22, 2015 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a License Agreement by and between the City of Lubbock and YWCA, a non-profit corporation, for use of open space in Leftwich Park, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this January 22, 2015. ATTEST: Rebec4 Garza City Seluetary APPROVED AS TO CONTENT: Director, Parks and Recreation APPROVED AS TO FORM: City Attorney Resolution - YWCA License Agreement Leftwich Park 12.4.14 Resolution No. 2015-R0042 LICENSE AGREEMENT This License Agreement (the "Agreement') is entered into on this ?ind day of 2015 January 7014 between the City of Lubbock, Texas (the "City"), a Texas Home Rule Municipal Corporation, and the YWCA of Lubbock, Texas (the "YWCA"), a non-profit corporation. I.pL�l11►:�11.9 WHEREAS, the YWCA desires to use the open space and playground in Leftwich Park, a park owned and operated by the City (the "Park") to conduct activities for the summer camp and other outdoor activities operated by the YWCA for the supervising and education of minor children (the "Activities"); and WHEREAS, it is the belief of the City and the YWCA that said use of the Park would be beneficial to the citizens of the City of Lubbock; and WHEREAS, the YWCA desires to utilize the playground and open space for purposes of the Activities on that certain real property described on Exhibit "A" attached hereto (the "Lands"), including the ability to set up tents, tables and chairs. NOW THERFORE, the City and the YWCA agree as follows: ARTICLE I License Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and of other good and valuable consideration, the City hereby grants, upon the terms and conditions set forth in this Agreement, a license on and over the Lands to the YWCA, for the sole purpose of conducting the Activities on the Lands. Agreement, for three (3) additional successive option periods of five (5) years each (the "Option Period"). This Agreement shall terminate without further notice when the Primary Term or Option Period, whichever is applicable as specified in this Section (2) expires, and the YWCA shall immediately vacate the Property. Any holding over by the YWCA after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide the YWCA any rights whatsoever under this Agreement and/or to the Property or the Parking Lot. (3) The YWCA is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas, and is duly qualified to carry on its business in the State of Texas. The YWCA has the corporate power to enter into and perform this Agreement and all activities contemplated hereby. The execution, delivery and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all requisite corporate action on the part of the YWCA. (4) The YWCA shall be responsible for the cost of any and all construction costs related to the initial construction of the Parking Lot. The YWCA shall begin to construct the Parking Lot at such time the YWCA determines it is able to fund said construction through completion. (5) The YWCA shall conduct all repair and maintenance on the Parking Lot. No repair or maintenance of the Parking Lot by the YWCA may be commenced, unless the plans, specifications and proposed location of the Parking Lot have received the City's, prior written approval. The YWCA shall be solely responsible for any and all landscaping that the YWCA, in its sole discretion, installs in and around the Parking Lot. (6) No construction of the Parking Lot by the YWCA may be commenced, unless the plans, specifications and proposed location of the Parking Lot have received the City's, and if required by the City or by law, any other entities' or parties', including, but not limited to, the State of Texas, Texas Parks and Wildlife Department and Texas Historical Commission, prior written approval, as described below. The YWCA shall, at its own expense, engage a professional, who is licensed to construct such facilities as parking lots, to prepare plans and specifications for the construction of the Parking Lot. The YWCA shall submit a copy of detailed working drawings, plans and specifications that are stamped by the above- described professional to the City for its approval not less than thirty (30) days before such construction of the Parking Lot is scheduled to commence. YWCA - Parking Lot License Agreement 12.19.14 Page 2 of 8 The City, and any other parties having the right of approval as described herein, shall review all plans submitted under this section, and provide to the YWCA, in writing, any required changes or corrections that must be made, that the City, and any other parties having the right of approval as described herein, may deem necessary, in their sole discretion. Any required changes or corrections shall be made and the stamped plans resubmitted to the City, and any other parties having the right of approval as described herein, prior to the commencement of such construction. No such construction shall be commenced unless and until the stamped plans are finally approved by the City and any other parties having the right of approval as described herein. The failure to receive the approval described herein shall not excuse the performance by the YWCA of any activity or covenant described in this Agreement. The City and/or any of the parties having the right of approval as described herein shall have the right at all times to observe any and all activities described in this Agreement. Notwithstanding the approval by the City and/or any of the parties having the right of approval as described herein, of any plans and specifications, and/or the observation rights of the City and/or any of the parties having the right of approval as described herein, the City assumes no liability or responsibility for the design or for any defect in any construction from such plans or specifications, nor shall such approval and/or observation relieve the YWCA from any or all of its obligations hereunder. All activities described in this Section (6) shall be at the sole cost and expense of the YWCA. (7) It is expressly agreed and understood that the YWCA and its members and patrons and the City and the patrons of the facilities located on the Property shall have the right to utilize the Parking Lot for the parking of motor vehicles during all times of the effective period of this Agreement. The Parking Lot shall remain open to the general public. The YWCA shall not permit any discrimination in its use of the Parking Lot because of race, color, sex, religion, national origin, physical handicap or disability. (8) Nothing contained in this Agreement shall be construed to prohibit the right of entry by the City, in, on, over and/or across the Property and/or the Parking Lot, at any and all times, and for any and all purposes, and City expressly reserves the right to enter upon the Property and/or the Parking Lot to conduct any and all activities the City deems necessary. (9) The City shall retain all authority placed in it which is non -delegable. No provision of this Agreement shall be construed as delegating any non -delegable right, power or duty of the City, and in the event of a conflict between this Section (9) and any other term or provision of this Agreement, this Section (9) shall YWCA - Parking Lot License Agreement 12.19.14 Page 3 of 8 control and such conflicting term or provision shall be void and of no force and effect. (10) The YWCA shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner, or form the construction activities contemplated herein, the construction, operation and maintenance of the Parking Lot, and/or any other aspect of the activities described in this Agreement, including, without limitation those regarding to access of the facilities by handicapped persons (11) The relationship between the City and the YWCA is at all times solely that of licensor and licensee, and may not be deemed, in any event, a partnership or a joint venture. (12) The YWCA shall not encumber any interest in the license granted herein, the Property, the Parking Lot, and/or this Agreement, in any way, manner, or form, including, but not limited to, by deed of trust, mortgage or any other security instrument. Further, the YWCA shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Property, and/or this Agreement by reason of any work, labor, services, or materials supplied and/or performed or claimed to have been supplied and/or performed to, by or for the YWCA or any contractors or subcontractors of the YWCA. (13) Any and all improvements constructed, placed, located and/or maintained on any part of the Property and/or the Parking Lot during the term of this Agreement are considered part of the real property and must remain on the Property and, subject to the terms of this Agreement, become property of the City, from and after the termination of this Agreement. (14) Any and all motor vehicles, and all property of any kind or nature contained in or appurtenant to said motor vehicles, which are parked and/or located on the Property by virtue of the YWCA's utilization of the Parking Lot are the sole responsibility of the YWCA, and in no event shall City be liable for any loss or damage to such motor vehicles or property for any reason whatsoever. Any and all motor vehicles, and all property of any kind or nature contained in or appurtenant to said motor vehicles, which are parked and/or located on the Property by virtue of the City's utilization of the Parking Lot are the sole responsibility of the City, and in no event shall the YWCA be liable for any loss or damage to such motor vehicles or property for any reason whatsoever. (15) In the event the YWCA breaches or defaults on any term and/or provision of this Agreement, City shall be entitled to immediately termination of this Agreement. (16) The City retains the right to terminate this license at will, for any reason or no reason, by providing written notice to the YWCA. In the event that the YWCA YWCA - Parking Lot License Agreement 12.19.14 Page 4 of 8 (17) desires to terminate this Agreement, for any reason or no reason, the YWCA may, by providing one (1) year written notice of such termination to the other party, terminate this Agreement. Notice is to be provided by certified or registered mail as follows: For the City: City Secretary City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 With copy to: Bridget Faulkenberry Director, Parks and Recreation P. 0. Box 2000 Lubbock, Texas 79457 (806)775-2671 Fax: (806) 775-3240 For the YWCA: Glenda Mathis Executive Director YWCA of Lubbock, Texas 3101 35th Street Lubbock, TX 79413 Phone: (806) 792-2723 x3233 Fax: (806) 771-3262 (18) This license is personal to the YWCA. The YWCA shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors. (19) THE YWCA SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY, AND CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES. THE YWCA FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE CITY AND/OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM, AND TO PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING TO, OR IMPOSED ON YWCA - Parking Lot License Agreement 12.19.14 Page 5 of 8 THE CITY, OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AND/OR AGENTS, AS APPLICABLE, RESULTING FROM ANY SUCH SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, THE YWCA SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AND/OR AGENTS, AS APPLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORCING THE YWCA'S INDEMNITY IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, SHALL NOT BE LIABLE, AND THE YWCA HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FOR, FROM AND/OR AGAINST ANY LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO THE YWCA, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE, OF ANY TYPE OF DEGREE, OR FAULT, OF THE CITY, ARISING FROM OR RELATED TO, IN ANY WAY, MANNER, OR FORM, THE UNENFORCEABILITY OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PART OF THIS AGREEMENT. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS AGREEMENT. (20) The YWCA shall procure and carry, at its sole cost and expense through the life of this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement. The YWCA shall obtain and maintain in full force and effect during the term of this Agreement, general liability coverage with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A -VII or better. The policies will be written on an occurrence basis, subject to the following minimum limits of liability: General Liability: Combined Single Limit: $500,000 The City shall be listed as an additional insured with respect to the Commercial General Liability. YWCA shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate of Insurance shall provide 30 days notice to City of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the Certificate of Insurance. (21) The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any YWCA - Parking Lot License Agreement 12.19.14 Page 6 of 8 and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. (22) This Agreement is to be construed under Texas law, without regard to conflict of law rules that would direct application of the laws of any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. (23) If any one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. (24) This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. (25) No amendment, modification, or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly executed by the parties. (26) The exhibits which are referenced in, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. (27) Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. (28) This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et seq., as amended (the "Texas Public Information Act") the same shall be of no force and effect. (29) Nothing in this Agreement is construed as creating any personal liability on the part of any employee, officer or agent of any public body that may be a party to this Agreement. (30) THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS AGREEMENT IS IN ANY WAY INTENDED TO YWCA - Parking Lot License Agreement 12.19.14 Page 7 of 8 CONSTITUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE PARTIES RETAIN ALL GOVERNMENTAL IMMUNITIES. (31) The intent of this Agreement is to grant a license to YWCA to utilize the Parking Lot solely for the purposes described herein. This Agreement shall not be construed, in any way, manner, or form, as a lease of the Parking Lot or the Property or as conveying to YWCA any interest in the real property comprising the Property. Executed and effective as of the date of the execution hereof by the City of Lubbock. CITY OF LUBBOCK, TEXAS YWCA OF LUBBOCK, TEXAS ' BY: /1CGu.(r/4/PLCC&-cai GL R(%ERTSON, MAYOR Name:' Jle 6z. 9. /Ia-46is Title: Z)e2¢v e, Date executed: January 22, 2015 Date executed: 12,4Z,21/14 ATTEST: 0 -�, 4 Z C, g -)Y� Reb cca Garza, City'Secretary APPROVED ASL CONTENT: Bridget Faulkenberry, Director, Parks and Recreation APPROVED A 0.moi/ v aura Pratt, Ass' tant City Attorney YWCA . Parking Lot License Agreement 12.3.14 YWCA - Parking Lot License Agreement 12.19.14 Page 8 of 8